| Putrajaya, Malaysia | 11 Feb 2016 | Asia Samachar |
Malaysia’s interfaith council has welcomed the latest Federal Court on the demarcation of civil and Syariah courts jurisdiction in a long-drawn conversion case.
The Malaysian Consultative Council Of Buddhism, Christianity Hinduism, Sikhism & Taoism (MCCBCHST) noted the decision in the S.Deepa’s case ‘although belated by 7 years has reconfirmed’ an earlier Federal Court decision.
“The MCCBCSHT hopes that the Syariah Courts would take notice of this Federal Court decision when the Federal Court clearly stated that Syariah Court only have jurisdiction have only where both parties are Muslim’s,” says MCCBCHST vice president Jagir Singh in a statement released yesterday.
On 10 Feb, the The Federal Court ruled that it is the civil court that should decide the custody of children who were converted to Islam.
A five-man bench chaired by Tan Sri Raus Sharif said a non-Muslim marriage did not dissolve when one party embraced Islam.
“Divorce and custody of non-Muslim marriages are exclusive jurisdiction of the civil court,” he said in dismissing Izwan Abdullah’s appeal, reports online news portal The Malaysian Insider. See full report here.
Jagir is also the president of the Malaysian Gurdwaras Council (MGC).
THE MCCBCHST STATEMENT IN FULL
Interfaith council welcomes Malaysia’s Federal Court decision on demarcation of civil/syariah courts jurisdiction
The Malaysian Consultative Council Of Buddhism, Christianity Hinduism, Sikhism & Taoism (MCCBCHST) welcomes the decision of the Federal Court in S. Deepa’s case which was delivered this morning. The Federal Court held that it is the civil court that had the jurisdiction and therefore should decide the custody of children who were converted to Islam. The Federal Court added that “Divorce and Custody of Non-Muslim marriages are exclusive jurisdiction of the civil court. Tan Sri Raus Sharif who chaired the 5 member Panel of the Federal Court stated “a non-muslim spouse could not abuse his conversion to Islam to escape his obligation.
The above decision of the Federal Court although belated by 7 years has reconfirmed the Federal Court earlier decision in TAN SUNG MOOI (FC) V. TOO MIEW KIM [1994] 3 CLJ 708 where the Federal Court had held:
“In the context of the legislative intent of S.3 and the overall purpose of Act, the respondent’s legal obligations under a Non-Muslim marriage cannot be extinguished or avoided by his conversion to Islam.
The problem persisted until now after TAN SUNG MOOI’S case due to the following:-
(i) The Syariah Courts began to assume jurisdiction over conversion cases arising out of a Non-Muslim marriage, although they did not have the jurisdiction as confirmed by the Federal Court in S. Deepa’s case
(ii) While Syariah Courts began To assume more and more Jurisdiction in conversion cases, the civil Courts appeared to be abdicating their duty in this cases, and saying they had no jurisdiction. This stand of the civil courts resulted in Non-Muslim unable to get a remedy earlier, such as in Indira Ghandi’s case. The latest court of Appeal decision in early JANUARY, 2016 in Indira Ghandi’s case where the court held they had no jurisdiction in conversion cases, although the marriage was between Non-Muslims and done in a civil court is a case in point.
The Federal court’s ruling that S.Deepa would continue to have custody over her daughter Sharmila while Irwan will have custody over Muthran, is to be understood as being based on the facts of this case as Federal Court found that both the children were quite settled with their parents. Thus, this decision cannot be used as a precedent in future cases to deny custody of children to the Non-converting spouse.
The MCCBCSHT hopes that the Syariah Courts would take notice of this Federal Court decision when the Federal Court clearly stated that Syariah Court only have jurisdiction have only where both parties are Muslim’s” The MCCBCHST also hopes that the civil court will take notice of this Judgment, and not refuse Jurisdiction in such cases.
- Jagir Singh, Vice President, MCCBCHST
[ASIA SAMACHAR is an online newspaper for Sikhs in Southeast Asia and surrounding countries. We have a Facebook page, do give it a LIKE. Follow us on Twitter. Visit our website: www.asiasamachar.com]
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THE MALAY MAIL ONLINE
Thursday May 19, 2016
http://www.themalaymailonline.com/malaysia/article/why-indira-gandhis-bid-to-reverse-her-childrens-conversion-matters
Why Indira Gandhi’s bid to reverse her children’s conversion matters (VIDEO)
BY IDA LIM
KUALA LUMPUR, May 19 ― Hindu mother M. Indira Gandhi’s bid at the Federal Court today to annul her children’s unilateral conversions is one woman’s ordeal that will have far-reaching effects on Malaysians in a similar dilemma.
In and out of courts for years, Indira is seeking finality over the religious status of her three children who were covertly converted to Islam by her Muslim ex-husband in 2009 without their knowledge or their presence.
“At last, finally once and for all, I can know the status of my children. It’s been dragging for too long,” the Ipoh-based kindergarten teacher told Malay Mail Online when contacted ahead of today’s hearing for leave to appeal.
Indira and her children have been on a legal roller coaster, from the Ipoh High Court ruling in 2013 that nullified the unilateral conversions to the Court of Appeal’s 2-1 ruling in December that only the Shariah courts could decide on the validity of conversions to Islam.
Just children when the case began in 2009, Indira’s eldest daughter Tevi Darsiny is now an adult at 19 while her brother Karan Dinish turns 18 in October; both will be old enough to decide their own faiths. Prasana Diksa’s location remains unknown after being snatched by the ex-husband seven years ago.
“We need a permanent solution for this. And they are growing children, they need a life to go on, they can’t be stuck and then now we are not sure whether they are still Muslims or still Hindus, we are in the middle of nowhere,” Indira said.
Non-Muslims shut out from the civil justice
Should the Federal Court deny Indira leave to appeal, her lawyer M. Kulasegaran said non-Muslims in similar cases would effectively be left without remedy from the civil courts.
“Then it will be a case where anybody who has been converted because a conversion certificate was given without [his] knowledge, when he wants to challenge, he has to go to the Shariah courts,” he said, arguing that it was unreasonable to force non-Muslims to go to Shariah courts to cancel wrongly issued conversion documents.
Stressing the importance of allowing non-Muslims to challenge the validity of their conversion certificates in the civil courts, Kulasegaran said this was a novel point of law that Indira was bringing before the Federal Court.
All including Muslims will have a right and avenue to argue their case at the civil courts, he said, noting that all parties will have the opportunity to fully ventilate the relevant issues if the Federal Court grants Indira leave to appeal.
Indira has filed eight questions of law for the Federal Court to consider.
A nation’s chance at having conclusive answers
Civil liberties lawyer Aston Paiva said that beyond the fate of Indira’s children, this case will be the first time the Federal Court is given a chance to deal with state Islamic laws related to conversion and the conversion process.
“That’s the one thing that no other courts have dealt with it before, what is the conversion process – these are laws, nothing to do with Islam ― what you need to do to become Muslim and if you don’t do it, who can decide, the Shariah court or the civil court.
“It’s not a religious issue, it’s an issue of whether the preconditions have been met, it’s an issue of compliance with the laws,” Aston said.
Aston said the Indira’s case also deals with whether a government can convert someone without their consent, noting the current “dangerous precedent” stated this was permissible.
“That cannot be the case because the remedy is in the Shariah court where the non-Muslim will be subject to Islamic laws,” he said when expressing disagreement with the current legal position based on the Court of Appeal’s majority ruling in Indira’s case.
Noting that unilateral conversions were “happening over and over again” in Malaysia, Aston said Indira’s case was also crucial as it raises the question of the effect of such conversions on interfaith relations.
Firdaus Husni, a former co-chair of the Bar Council’s constitutional law committee, said Indira’s “heart-breaking” story involves many important constitutional issues that the Federal Court would have the opportunity to determine if Indira is granted leave to appeal.
“For example, Article 121(1A) of the Federal Constitution relied on by some to exclude the jurisdiction of the civil courts from all cases concerning the religion of Islam, even when one party to a dispute is a non-Muslim, over which the Syariah courts have no jurisdiction. Many have argued that this cannot be the correct position,” she said.
Others include the interpretation that a single parent could determine his children’s religion, and the right of non-Muslims to practise their faith in peace.
How can Dividing a family and not giving a final decision on root of the problem should be a ‘welcome’ decision?
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